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2 Escape Hatches in MS's Covenant Not to Sue
Sunday, December 04 2005 @ 08:30 PM EST

I read with some alarm Andy Updegrove's careful explanation, specifically for nonlawyers, of the 6 concerns raised by Sun Microsystems' Simon Phipps regarding Microsoft's covenant not to sue.

I was alarmed because my best understanding of what I read is that there are two escape hatches in the covenant, should Microsoft care to make use of them. I wrote to Larry Rosen and asked him if he'd care to comment on what Andy wrote. I expressed that my deepest concern is about Phipps' number 4 and 6. Larry's comment and then Andy's reaction follow.

The bottom line is that my understanding was correct. As long as there are software patents, there is danger, if Microsoft were to choose to ... um.. . go bad, shall we say? The thing about patents that troubles me so is that openness as to a license is one thing, and very fine on its own, but if you are walking on a substratum of patents under your licensed feet, there is still a danger that you'll end up stepping into patent quicksand. More and more, I personally suspect that is the Microsoft strategy.

First, so you can understand Larry's comment, here are the two concerns from Phipps, abbreviated and italicized (so do visit Andy's blog for the full version), along with Andy's explanation in regular text, beginning with Phipps' concern #4 about Microsoft's covenant not to sue:

4. It is specific to the version currently existing, meaning I can be hooked into supporting it now, but when Office 12 or Office 13 comes out & I update to be compatible with the format in that I can get sued. The covenant Sun uses creates ongoing protection.

This is a serious one, and it's one that I've examined at length in two prior posts here and then here. First, in fairness to Microsoft's intention (although not its wordsmithing) and as I pointed out in the first of those posts, Microsoft does say at a separate page at its site that it will extend the same covenant to the Office 12 XML Reference Schemas. But that's as far as they've gone.

Again, to be fair, the way standards organizations work, someone can always drop out and not have to make a patent pledge regarding any new parts of a revision of a specification. But its undertakings are irrevocable and perpetual as to the version of the specification that was released while it was an involved member. ...

So one hopes that Ecma will do something to close this gap as a condition to accepting Microsoft's offer. . . .

Back to Simon one last time:

6. If the same form of words were used for a contribution to ECMA, then those prototyping the ongoing evolution of the standard as ECMA changed it would lose protection the instant any change was made. It applies only to Microsoft's input, not to ECMA's output. Or maybe they would rather ECMA didn't change anything?

...The fact of the matter is that Microsoft, so far, has only said on a Web page that it will make a covenant for the Office 12 versions of the XML Reference Schema -- and not for any Ecma standard based upon those Schema that may ultimately be adopted and issued. If it wishes, it can stop right where it is, and to the extent the Ecma working group adds any extensions, Microsoft could utilize the Ecma RAND-tolerant policy for those portions of the resulting Ecma standard....

But here's where the convergence of Simon's first and last question bring us to an interesting conclusion: if Ecma adds to the Microsoft contribution, then a "conformant" implementation of the Ecma standard would have a subset of itself that was "conformant" to the XML Reference Schema, and the implementation would be entitled to the covenant as to the conformant part, and RAND benefits as to the balance. But if instead of adding to, the Ecma working group changes part of the XML Reference Schema, then Microsoft could say "sorry – a critical exception has occurred" – and the covenant crashes.

If Andy is correct, I thought as I read this, then Microsoft has two holes big enough to drive a truck through. That's how I understood it, but not being a lawyer, I decided to ask Larry if I'd understood it correctly. Here is his response:

Hi PJ,

Thanks for the opportunity to comment on Andy Updegrove's latest blog [1] about the Microsoft covenant not to sue.

I can't quarrel with any of Andy's analysis. There are possible "escape hatches" for Microsoft in its covenant and in the Ecma process. The only thing that would guarantee otherwise would be if there were no software patents, but we're not at that point.

It doesn't surprise me that some people are suspicious of Microsoft and anticipate that company to pounce once it has trapped everyone into its web of patents. It earned that suspicion by past behavior although I'm told of encouraging changes there. I agree it is possible for Office 12 or Office 13 or some subsequent version to be outside the covenant and therefore once again proprietary. (Simon Phipps' point 4.) And certainly it is possible for the Ecma process to disintegrate into chaos and create a specification outside the covenant. (Simon's point 6.)

As a practical matter, I don't expect either alternative to occur. Microsoft has no reason to revert to locking up its XML document formats because doing so would only antagonize its own customers, not to speak of the State of Massachusetts and the open source community. Among the market requirements for Microsoft's subsequent versions of Office will be the availability of the Ecma-standard XML document format regardless of what add-on formats their software might offer. Another market requirement, I'm sure, will be support for the OASIS-standard XML document format. Customers of both Microsoft and Open Office products will demand the ability to exchange documents under both standards until, perhaps in some distant future, merger occurs on some new technology.

I now expect the Microsoft Office and Open Office products to compete on the merits without Microsoft and Sun suing people for practicing their XML document format patents. I expect that truce to continue indefinitely because it is in everyone's best interests.

Free software and open source software can forever implement certain Ecma-standard and OASIS-standard XML document formats. That's what I insisted upon in every conversation I had with Microsoft's attorneys and Sun's attorneys during all our past quarrels over patent license terms. I believe that's what we got from both companies.

That's why I'm pleased, even though I'm not naive enough to believe there aren't subsequent battles we'll have to fight about open standards. The best way to ensure ongoing cooperation is for open source companies to join the standardization efforts at Ecma and OASIS. Keep them open.



He can't quarrel with any of Andy's analysis, he writes. The escape hatches are real. Larry sent his reply to Andy also, and that made it possible for the conversation to continue. Here is Andy's reponse, again with his permission to share it with you:

Thanks for copying me, Larry.

So far, I've written three detailed blog entries from the "what could Microsoft do?" perspective, the latest being the one you note below. I haven't tried so far to guess what Microsoft will do, however, which is more the approach that you're taking with this email. That's just as valid an approach, but one for which I have less confidence in my abilities.

If I had to turn from analysis of possibilities to reading a crystal ball, however, I'd make the following additional prefatory observations:

Question one: Is Microsoft playing dirty?

1. I've talked to some of the top people at some of the major players involved, to lobbyists, and to reporters over the last three months, and I've asked many of them if they've run into direct proof of Microsoft being up to no good. So far, I haven't run into a single instance that someone actually knows about. Do they have lobbyists, publicists, trade associations and bloggers in their camp? Of course they do. And so do ODF advocates.

2. There are also people I know inside Microsoft who I know and like, and I don't think that they believe that they are engaged in an underhanded operation here.

3. With respect to Massachusetts, the local political situation is certainly breaking Microsoft's way. One wouldn't expect Microsoft not to take advantage of that if they could.

Net net, I don't have any reason to think that one side is playing markedly tougher ball than the other. If one is, then they are extremely good at covering their tracks. It's possible, of course, that Microsoft may be playing more skillfully, but if they're coloring inside the lines, then it's harder to complain. There's a lot at stake here, and business is business.

Question two: What will Microsoft do at Ecma?

1. Here I'm a bit less sanguine. Microsoft has a tightly integrated product that it's been developing for many, many years. I would not expect them to want to let anyone trifle with it.

2. In this context, the differences between the Sun covenant and the Microsoft covenant becomes more significant: Microsoft has covenanted not to sue those that implement its current schema, and has said that it will make the same covenant regarding the Office 12 schema. But it has explicitly *not* said that it will give a covenant regarding the final form of the schema that is approved by the Ecma membership.

3. In normal standard setting, it is usual for technology to be offered as the starting point, but not to give a blanket promise as to the entire final work product of the process. But under the rules of standard setting organization, it *is* required to irrevocably commit to patent terms as to so much of the material that it contributes that is included in the final specification. And the word *conformant* is not used in the submission - ever - in my personal experience, which spans scores of consortia.

Net net, when you add points 1 to 3 together, it is reasonable to assume that Microsoft is positioning itself to offer the Office 12 XML Reference Schema to Ecma for a rubber stamp of approval. If that would be as useful a result for the industry as a submission that could be pushed and pulled a bit, then there is really nothing for me to object to (or at least for me to object to seriously). I am not competent to make a judgment like that, but it would be very useful if someone else would.

It's very possible, of course that Microsoft is just taking one step at a time with its covenant. If that's the case, then all can be made clear in the document of submission that it makes to Ecma. It would be very useful if that would be made public.

At the end of the day, I agree with you that ultimately the market will decide as between two alternatives based upon the value that customers perceive in those alternatives, and not pay too much attention to any of the analysis that has come before in the blogs of the world. Having a huge installed base will certainly be an advantage in determining how that will play out, however, including with respect to how much effort ISVs put into creating software that would appeal to what will certainly be a much smaller ODF market for the indefinite future.

But again, you can't blame Microsoft for taking advantage of that dynamic, if they can make it work for them.

So here's my bottom line: I think that Microsoft will do what it needs to do to make its business strategy succeed, and I wouldn't expect them to do any more or less, with 40% of their profit at stake. But that's as clear as I can get my crystal ball to be.

Best regards,


Of course, lawyers are normally polite. It's a job requirement, to be able to deal with opponents without telling them what you think of them. Really, don't mock it. It's very, very important to the smooth running of the legal system. It's something I admire and believe in deeply, and I try to abide by the same principles.

Additionally, both attorneys have to deal with Microsoft, have done so in the past, and will do so in the future. I, on the other hand, have absolutely nothing to lose, so I'll tell you what I think this means, without any flowery bits. I don't mean to imply that they are not sincere, by the way. I know they are.

What I think it means is that OpenDocument Format is uniquely qualified to meet the Commonwealth of Massachusetts' stated policy as to what qualifies as an Open Standard for their purposes. You can hardly call a standard open, if it belongs to a single vendor, who can escape a covenant not to sue any time it wishes. Whether or not you believe that Microsoft is capable of such a dirty trick is immaterial. If it is possible, the "standard" can't match the openness of ODF, nor does it match what the Commonwealth has called for, as far as I can see.

I just wrote an article for LWN on this subject, "When Is a Standard Truly Open? -- Only When It's Universal," which is still subscription-only until next week, and the article begins like this:

What makes one standard open and not another? Massachusetts, when deciding to use the OpenDocument Format, as set forth in its Enterprise Information Technology Architecture (ETRM) document [PDF], set the bar here:
[Secretary of Administration & Finance for the Commonwealth of Massachusetts Eric] Kriss emphasized, however, that the state is not moving to open standards for economic reasons but to protect the right of the public to open and free access to public documents for the foreseeable future. "What we've backed away from at this point is the use of a proprietary standard and we want standards that are published and free of legal encumbrances, and we don’t want two standards," Kriss said.

... Is the Microsoft covenant not to sue, assuming it is someday offered for their new version of XML schemas, and their plans to submit their XML to standards bodies ECMA and ISO sufficient to meet the Massachusetts requirements for openness?... If not, will Massachusetts decide their bar was set too high, in order to include Microsoft? If the bar was set too high, which part shall we lop off?

The article then goes down the list to show that nothing in Kriss's list is expendable, in my opinion, and suggests that the real question isn't whether a standard is open so much as it's whether it is universal, whether everyone -- including the GPL -- can use it without fear or restriction. Massachusetts already has a definition of what it requires. According to my reading, Microsoft has not yet met it. Would they not have to close the two escape hatches, for starters, to qualify?

Larry relies on the marketplace to make that happen, but will Massachusetts politicians have the technical sophistication to realize the superiority of ODF? What have you observed? They might like to note that Gartner has just stated that ODF is superior to Microsoft's XML, by the way:

Gartner has suggested that while OpenDocument is the best XML office document standard out there, the announcement of rival 'open' standard from Microsoft could seriously hinder its growth...

However, Gartner recommends that enterprises looking for an open XML-based document format should adopt the OpenDocument format if they can exploit XML immediately because the ECMA specification is unlikely to appear for at least another year.

Andy also notes the superiority of Sun's covenant not to sue:

With respect to the current situation, however, the ODF standard is already in the marketplace, is already supported by several products, and has already been submitted to ISO for adoption. So if one were to put oneself in the position of a developer or a government agency, the analysis of my previous post becomes relevant: am I better off under the Sun covenant and the OASIS IPR policy, or am I better off (or at least no worse off) under the Microsoft covenant and pledge to seek Ecma adoption, and then ISO endorsement?

From this market perspective, Microsoft arguably needs to go farther than Sun, rather than less far, to provide equivalent comfort to those currently choosing between ODF and the Microsoft schemas. The reason is because Ecma has not yet taken control of the XML schemas, much less adopted them. Until then Microsoft still controls (and can therefore change) the formats, or could withdraw the formats from Ecma if it was not pleased with the direction that the Ecma working group wished to go.

Perhaps Tim Brays' suggestion to blend the two standards into one is the most practical:

The ideal outcome would be a common shared office-XML dialect for the basics—and it should be ODF (or a subset), since that’s been designed and debugged—then another extended vocabulary to support Microsoft features , whether they’re cool new whizzy features or mouldy old legacy features (XML Namespaces are designed to support exactly this kind of thing). That way, if you stayed with the basic stuff you’d never need to worry about software lock-in; the difference between portable and proprietary would be crystal-clear. And, for the basic stuff that everybody uses, there’d be only one set of tags.

This outcome is technically feasible. Who could possibly be against it?

Of course, if Microsoft is desiring to use patents to maintain their stranglehold on the market, then his suggestion will not appeal to them.

Can Microsoft fix this? Yes. Will it? Let's watch and see. I hope they do. But the fundamental question is always this with Microsoft, as you'll remember from the SenderID flap: can GNU/Linux and the GPL participate on an even playing field? If not, then does it deserve to be called a standard? And even if you answer yes, does it meet Massachusetts' stated requirements? Microsoft may close the two loopholes. But if Microsoft doesn't address these flaws, and if ECMA just rubberstamps their submission blindfolded, then I think we'd have to agree that it isn't open by any definition that we can understand.


2 Escape Hatches in MS's Covenant Not to Sue | 157 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-Topic Here
Authored by: The Mad Hatter r on Sunday, December 04 2005 @ 08:45 PM EST

Don't forget to use HTML for links.


[ Reply to This | # ]

Corrections here
Authored by: billposer on Sunday, December 04 2005 @ 08:51 PM EST
"substrata" -> "substratum" since it is singular here.

[ Reply to This | # ]

2 Escape Hatches in MS's Covenant Not to Sue
Authored by: mvready on Sunday, December 04 2005 @ 08:53 PM EST

The story on Preston Gates in the side bar twigs me to ask "Is this the Gates that brought Bill into the world?"

Having a family environment of litigious law might be a good background if there was a plan to dominate an industry through law instead of engineering. One approach is good for the company and its founders, the other is good for users. Both are very creative vocations but I'm inclined to engineering as the more contributory to our culture.

[ Reply to This | # ]

Old Maxim
Authored by: overshoot on Sunday, December 04 2005 @ 09:10 PM EST
Plan based on enemy capabilities, not enemy intentions.

[ Reply to This | # ]

  • Old Maxim - Authored by: Lourens on Monday, December 05 2005 @ 03:15 AM EST
    • Old Maxim - Authored by: Anonymous on Monday, December 05 2005 @ 07:55 AM EST
      • Old Maxim - Authored by: Anonymous on Monday, December 05 2005 @ 09:04 AM EST
        • Old Maxim - Authored by: Anonymous on Monday, December 05 2005 @ 09:25 AM EST
          • I agree - Authored by: RPN on Monday, December 05 2005 @ 10:19 AM EST
            • I agree - Authored by: Anonymous on Monday, December 05 2005 @ 11:57 AM EST
  • Old Maxim - Authored by: btg on Monday, December 05 2005 @ 11:33 AM EST
2 Escape Hatches in MS's Covenant Not to Sue
Authored by: eric76 on Sunday, December 04 2005 @ 09:11 PM EST
As I gather, the standard must be open for Massachusetts to use the format. Or,
at least, that is what is desired.

Suppose that Microsoft is playing games and submits the current version as a
standard with the intention of changing it later leaving everyone else
conforming to an old standard with no way to update it.

Wouldn't that mean that Massachusetts government agencies would be unable to
legally upgrade their Microsoft Office to the latest version? After all, the
requirement would be for an open format, but the new version would not use an
open format.

[ Reply to This | # ]

2 Escape Hatches in MS's Covenant Not to Sue
Authored by: Anonymous on Sunday, December 04 2005 @ 10:26 PM EST
Here's the bottom line: Microsoft, even if accepts the necessity and agrees to a
covenant and agrees never to sue anybody or drop the covenant on future
versions, NONETHELESS it has made a big PR point with this move.

They can now claim that their documents are "OPEN" - whether they
really are or not - as PJ points out, they really aren't since they're still
controlled by one company - just like Java is not really open because it is
controlled by Sun.

I'd say therefore that this is partly an acceptance by Microsoft that they HAVE
TO open their formats SOMEWHAT in order to continue doing business with
governments and partly a PR move to counter the encroachment of open source.

In other words, don't pat anybody up there on the back - they did this kicking
and screaming, as their behind-the-scenes moves in Massachusetts and the UN
meeting demonstrate.

Bill Gates does NOT change his spots.

[ Reply to This | # ]

how much XML could an open office open if an open office could open XML?
Authored by: zcat on Sunday, December 04 2005 @ 11:19 PM EST
Perhaps it's just my dyslexia, but it seems to me Microsoft are trying very hard
to confuse the distinction between OpenDocument XML, the
software, and their own product.

Apparently "Sam Bucks" is too similar to "Starbucks", even
if your name happens to be Sam Buck. Why has nobody questioned how Microsoft can
be allowed to name their document format "Office Open XML"? It seems
to me they're deliberately trying to create confusion with both
and OpenDocument XML Format.

[ Reply to This | # ]

It is naive to say M$ obeys the 'Market'
Authored by: Anonymous on Sunday, December 04 2005 @ 11:52 PM EST
Its history is one long lesson in market-subversion.

Those who believe in the famous 'invisible hand' must be dismayed by the
introduction in the Massachusetts Senate of market-subverting legislation within
days of its having slapped M$ in the face.

Personally, I am dismayed that anyone can claim, "I expect that truce to
continue indefinitely because it is in everyone's best interests.", without
a lot, a whole lot, of explanations and qualifications.

It is clearly not in M$'s best interests. Even if it were, the believers in
"viral software" and "communists" and the morale-improving
effects of intra-mural furniture tossing certainly don't think it is. The
framers of the 'covenant', when viewed most charitably, are obviously trying to
minimize their loses, not embracing their best interests.

[ Reply to This | # ]

The best predictor of future behaviour is past behaviour
Authored by: kawabago on Monday, December 05 2005 @ 12:08 AM EST
Microsoft routinely makes agreements, forges aliances and does whatever it needs
to do to gain the trust of it's next victim. Then when they have extracted all
the value from the victim, they walk away from the agreement.

Microsoft has proven repeatedly to businesses of all sizes and in every sector
it's touched, that it cannot be trusted.

Every standard Microsoft has adopted it has added extentions to in order to lock
in customers and lock out competition. It will do the same thing again.

There is not one shred of evidence to suggest that Microsoft is doing anything
different now than it has done over and over and over and over and over and over
again. How many times do we have to watch someone burned or stomped by
Microsoft before people learn that you just can't trust them.

Anyone who adopts Microsoft's document format will come to regret it.


[ Reply to This | # ]

Authored by: Anonymous on Monday, December 05 2005 @ 12:35 AM EST

Larry Rosen writes: "It doesn't surprise me that some people are suspicious of Microsoft and anticipate that company to pounce once it has trapped everyone into its web of patents."
and later adds
"Microsoft has no reason to revert to locking up its XML document formats because doing so would only antagonize its own customers..."

Sorry Larry, but - MS has a long history of doing what is in the best interst of MS and not doing what is in the best interest of their customers.

[ Reply to This | # ]

  • naive - Authored by: Anonymous on Monday, December 05 2005 @ 01:03 AM EST
  • naive ...or delicate as PJ would have it. - Authored by: webster on Monday, December 05 2005 @ 01:30 AM EST
  • naive - Authored by: Anonymous on Monday, December 05 2005 @ 03:04 AM EST
    • naive - Authored by: Wol on Monday, December 05 2005 @ 03:33 AM EST
      • naive - Authored by: Anonymous on Monday, December 05 2005 @ 08:29 AM EST
Who ever said MS would sue?
Authored by: jig on Monday, December 05 2005 @ 02:23 AM EST

MS doesn't have to end up being the obvious bad guy.. they can license tech from
some third party, include it in their 12 or 13 spec, with all the appropriate
wording for them to be covered in offering it as open, then not offer the next
version, leaving an opening for a third party to sue other implementers

we already know they aren't above funding nuisance lawsuits, indirectly or not.

i haven't read their covenant enough to see if they indemnify their spec or not,
and i'm sure my above storyline is full of holes, but you get the gist.

why let them waltz in with a substandard "open" spec? you could even
argue that it's dangerous for THEM....

[ Reply to This | # ]

Remember the Ram imbroglio
Authored by: Anonymous on Monday, December 05 2005 @ 02:46 AM EST
from this link Sdram standard and Rambus s.htm Go ahead with my standard and then, i will give you the chance to contribute to the value of my intellectual property !

[ Reply to This | # ]

2 Escape Hatches in MS's Covenant Not to Sue
Authored by: findlay on Monday, December 05 2005 @ 03:31 AM EST
... [T]he real question isn't whether a standard is open so much as it's whether it is universal, whether everyone -- including the GPL -- can use it without fear or restriction.

I'm sorry PJ, but I think this hypothetical argument it broad enough to harm the intent I percieve you to have with it. Everyone should be able to use a standard within reason, that is to say, some party with malicious intent could create a software licensing scheme like the GPL which incorporates some radical or recalcitrant terms, and thus by our good will intending to provide universality we would be defeated.

Wir müssen wissen. Wir werden wissen.

[ Reply to This | # ]

As a standard, MS-XML is worse than the old MS binary formats.
Authored by: Anonymous on Monday, December 05 2005 @ 06:11 AM EST
MS-XML will be no different from the old secret MS file format s - they will
change every two years or so to force an upgrade. Does anyone really believe
Microsoft will do anything else and watch their MS Office revenue plummet as a
result? Without a breaking of compatibility in future Microsoft Office users
have no compelling reason to upgrade and they won't.

Microsoft will therefore come up with MS-XML 13, 14, 15 etc. formats which are
incompatible, and the wording of the patent covenant has been carefully done to
ensure this can happen. In fact the only difference between the MS-XML format
and the old binary formats, is the fact that the MS-XML format is patent
encumbered, and Microsoft has written in such a way as to prevent implementation
by other vendors of future implementations of the format and also to prevent
them reverse engineering or adding features or secret implementations left out
of the standard (the covenent not to sue stops when you go beyond what Microsoft
puts in the standard). This means that from a standards and accesibility point
of view, MS-XML is actually worse than Microsoft's secret binary formats, which
can at least be legally reverse engineered and distributed.

All Microsoft has to do to lock out other vendors and tighten it's monopoly even
further than it has been able to establish it before, is to implement a broken
or limited implementation which other vendors will have to use. Once Microsoft's
cronies in Massachusetts have got MS-XML adopted at the mandated
"standard" in Massachusetts, Microsoft will then offer a fixed/fully
functional version for MS-Office which other vendors will not be able to legally

This will be no different to the current situation with MS binary formats, and
in fact worse, because Microsoft's monopoly will be mandated and legally
enforced. MS-XML is therefore under it's current license terms not suitable for
Massachusetts needs for which ODF was adopted - the need for a single format
rather than one that changes to imcompatible versions every 2 years, for long
term archiving, data accessibility, and vendor neutrality.

The minimum requirement for these needs of Massachusetts to be met is to:
1) make the no sue patent covenant extend to cover all future versions and any
modified version no matter who modifies it.
2) require that the stewardship of the standard is handed over to a vendor
neutral otganisation.

[ Reply to This | # ]

Combining formats
Authored by: Nominal Animal on Monday, December 05 2005 @ 08:29 AM EST

While combining OpenDocument and MS XML into one specification is technically possible, it is definitely the worst possible outcome. Let me explain why.

The two formats have totally different content models - see the technical format comparison article. If you combine the two models, you end up with an broken format; it is like having to drive on the other side every third Tuesday.

The missing features should be implemented using the format's native content model. No "joining"; one format must be taken as the base, and the missing features ported from the other model. Considering the different content models, the resulting ported feature will differ significantly from the original.

The content model used in MS XML is rather unique; it feels like it is an internal data structure directly converted to XML. OpenDocument, however, uses the very common mixed content model, and already incorporates existing standards such as SVG and MathML. It is demonstrably simple to extend OpenDocument.

Microsoft could have participated actively in the OpenDocument TC at OASIS, and get any missing features added to the OpenDocument format. Microsoft chose not to. They have expressed no interest in extending or enhancing OpenDocument. Considering the way they have worded their licenses and patent pledge, they do not seem to have any interest in letting others extend or enhance MS XML, either.

I believe MS XML is untrustworthy. It is technically inferior, the content model is inefficient, and it has an ambiguous license and patent pledge. It does not reuse known working standards and suffers from the Not Invented Here syndrome.

OpenDocument is not perfect, but at least it is healthy. If it misses needed features, let's add them, but please do not kill it by adding broken MS XML bits.

[ Reply to This | # ]

Empowering Institutional/Government Customers
Authored by: rdc3 on Monday, December 05 2005 @ 09:41 AM EST

I think the Microsoft announcement is good news, because it has considerably empowered institutional and governmental customers of office products. Now every such customer should feel free to demand that buying decisions for office software are contingent on that software producing documents in an open document format specified by a standardization organization (e.g. OASIS or ECMA). Of course, they could just as well have made such a demand prior to Microsoft's announcement, but that neglects to consider either Microsoft's direct power or the power of their own users/constituents.

Furthermore, Microsoft's own products cannot now be considered for adoption on this criteria until such time as an ECMA-standard MS XML actually exists! The only game in town for now is OASIS OpenDocument XML.

Microsoft has given its customers the power to demand an open document format. It is important to make sure that they do and that covenant not to sue be maintained. Furthermore, ECMA, not Microsoft, must be the arbiter of any "conformance" requirements.

What would be really nice would be a focus on technical superiority in making decisions between between ECMA-standard MS-XML and OASIS OpenDocument XML. On that front, OpenDocument is the clear winner in my opinion, as it is clearly consistent with the philosophy and style of markup rooted in SGML, while MS-XML is not.

[ Reply to This | # ]

Being "Good"
Authored by: Observer on Monday, December 05 2005 @ 10:38 AM EST
This whole thing reminds me of the picture of a rich man who goes to church, and when the offering plate comes around, puts in a $20 bill. Now, twenty dollars is still twenty dollars, and it's a lot more than the "average" person in church gives, but given his position, it hardly qualifies him as "generous". It is a calculated expense -- something to make the man look good in front of other people, without costing him very much.

It seems like the covenant Microsoft has given us is good, as far as it goes, but it is hardly what I would call generous. It is a precisely calculated expense to make them look good in front of Massachusetts (and other governments which are looking to standardize on Open formats), without giving up their control of the format, or making it too easy for real people to implement their standard. It is an attempt to take the wind out of the ODF sales, while at the same time offering a olive branch to their customers.

It remains to be seen how many people are fooled.

The Observer

[ Reply to This | # ]

Been there, done that
Authored by: CustomDesigned on Monday, December 05 2005 @ 11:02 AM EST
The ideal outcome would be a common shared office-XML dialect for the basics—and it should be ODF (or a subset), since that’s been designed and debugged—then another extended vocabulary to support Microsoft features , whether they’re cool new whizzy features or mouldy old legacy features (XML Namespaces are designed to support exactly this kind of thing). That way, if you stayed with the basic stuff you’d never need to worry about software lock-in; the difference between portable and proprietary would be crystal-clear. And, for the basic stuff that everybody uses, there’d be only one set of tags.

Sun already tried that with Java. Their contract with MS allowed MS to add all the whizzy Windows specific features they wanted - as long as they didn't put them in the reserved java.* namespace. MS did add some nice packages within the rules: e.g. Jdirect. But they just had to go and put extensions in the java.* namespace as well: hence the lawsuit.

In addition to the lawsuit, Sun's technical workaround for the damage to portability was the 100% Pure Java program. Besides the marketing stuff, this was a utility to scan Java programs looking for any use of extensions to standard packages. You know you'll need such a utility for Office-XML if you rely on MS not to pollute the standard namespace.

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"No Sue" Covenant GREAT for ODF!!!!
Authored by: Anonymous on Monday, December 05 2005 @ 11:13 AM EST
Consider this: If MS has sworn to never sue for using their XML schema, then
this is EXCELLENT as a case for USING ODF!

Why? Simple: Now you can simply and EASILY convert to and from the MS schema
from ANY OFFICE SUITE! That means no, you DON'T need MS office 12, or OO.o, or
Abi, or Star, or whatever... everyone can add the MS Schema to their conversion
table, and simply open each and every damned proprietary MS document ever
made!!! All this and STILL support a STANDARD, like ODF.

By using this methodology, MS ends up NOT being the standard, instead, the
impetus is put BACK ON THEM to add the ODF Standard/Schema to THEIR proprietary
software. If they don't, then I also suggest the FSF/OS programmers make a GPL
equivalent of the MS document viewer... for ODF. Then nobody can say you need
some "onerous" program.

Further, you could make it (optionally) web based, so everyone with browser and
an internet connection could convert to/from the proprietary MS Schema to the
ODF Standar/Schema!

Oh man, why hasn't anyone else thought of this!?!

Quick, someone send this off to the ODF proponents in MA!



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2 Escape Hatches in MS's Covenant Not to Sue
Authored by: Anonymous on Monday, December 05 2005 @ 11:52 AM EST

I admit up front that I know little about the internals of Microsoft's XML format. So that will explain the possibly stupid question I'm about to ask:

``Does Microsoft's XML format include DRM?''

The reason I ask is that it might not be necessary to worry about what MS does regarding the next version of their XML standard. If they promise not to sue, as I understand it, if and only if other software that implements their XML file format are completely compatible with the MS implementation, then an OSS implementation will almost certainly be a non-starter. No OSS coder is going to write a word processor that includes onerous DRM hooks.

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Who could possibly be against it?
Authored by: AlsoNickFortune on Monday, December 05 2005 @ 11:55 AM EST
I could.

The major difference between the formats are the blobs of binary data (the
"marmalade") in the MS format. Without marmalade, translating from one
format to the other is mechanical (that's the point of XML formats) and we don't
need to compromise. SO, any meaningful compromise is going to have to involve
allowing marmalade in the XML. Anything less is more-or-less equivalent to
saying to Microsoft, "be reasonable - do it my way".

On the other hand, if we do allow marmalade blobs then we're back to square one.
Microsoft can use these blobs to reference OS components not covered by the
spec, and therefore outside of any patent protection. They get to have their
vendor lock in and at the same time claim interoperability. As for keeping to
the simple stuff, we have interoperability with office on those terms at the
moment; it doesn't work very well however and is one of the constant annoyances
of trading files between OOo and MS Office.

As I see it, the best result from a compromise is a continuation of the status
quo, while the worst case
allows MS to have their lock-in and still claim standards compliance.

Overall, I don't think this is a strategy that works to the benefit of Open

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2 Escape Hatches in MS's Covenant Not to Sue
Authored by: Anonymous on Monday, December 05 2005 @ 01:13 PM EST
I don't understand why people even care about the MS XML Schema. ODF is an open
standard, is available now, and does everything people want. The MS XML Schema
is a moot point in my opinion.

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2 Escape Hatches in MS's Covenant Not to Sue
Authored by: Anonymous on Monday, December 05 2005 @ 01:16 PM EST
Seriously, I am having trouble imagining that any person or corporation on Earth
would be so abysmally stupid as to willingly enter into a covenant with

Analyzing exactly how the covenant is weasel-worded and counting precisely how
many escape hatches can be found in it is like arguing over the composition and
amount of the substances used to dilute the heroin you buy from a street dealer:
any way you cut it, it's still poison.


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2 Escape Hatches in MS's Covenant Not to Sue
Authored by: Anonymous on Monday, December 05 2005 @ 01:31 PM EST
Andy Updegrove:
3. With respect to Massachusetts, the local political situation is certainly breaking Microsoft's way. One wouldn't expect Microsoft not to take advantage of that if they could.
I don't see anything breaking Microsoft's way in Massachusetts. The only thing I've seen is a statement by the administration and finance secretary saying he was happy Microsoft is making progress in creating an open document format after Microsoft's announcement about submitting their format to ECMA.

So what? I haven't seen the Massachusetts government overturn the IDT's decision to use ODF and I haven't seen them do anything substantive to favor Microsoft's proposed format over ODF.

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Question: why would they be able to sue?
Authored by: Anonymous on Monday, December 05 2005 @ 04:19 PM EST
I hear that processing word documents as they are now today can be done without
MS being able to sue. (Such as what Openoffice does, when it reads and writes
.doc files).

In other words anybody can process files in which ever format they come along
without legal problems.

So how come MS can now say they will not sue for using their XML. Could they
really sue, without their declaration ??

What changed?

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What Microsoft need to do....
Authored by: Anonymous on Tuesday, December 06 2005 @ 04:25 AM EST
OK I am not a troll. But someone here can hopefully get this point forcefully
across to Massachusetts.

Sun have pledged not to sue if the software meets the OASIS specification.

Until Microsoft allows someone else to "control" the spec their pledge
is worthless as they simply implement a new version.

Microsoft should pledge not to sue if the software conforms to the ECMA
specification. Microsoft can't go and change the ECMA spec, so I would actually
trust Microsoft for a change.

Of course it will never happen.

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What if ECMA updates the specs?
Authored by: Anonymous on Tuesday, December 06 2005 @ 08:28 AM EST
I haven't seen this potential problem discussed.

Suppose MS writes it's covenant to include a possible ECMA standardized version
of OfficeXML. Will ECMA be able to update the standard afterwards, without MS's
approval, and still retain the legal protection given by the covenant?

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